May 20, 2013

WSJ Equates Filing Empty Seats with Court-Packing

About 76 years ago, President Franklin D. Roosevelt hatched a plan for bending to his will a recalcitrant and obstructive (by his lights) U.S. Supreme Court. The Court at the time consisted of seven Republican appointees and two Democratic ones.

To counter the impact of the Court's decisions on the New Deal reforms, President Roosevelt proposed legislation that would have altered the makeup of the Supreme Court. The Judiciary Reorganization Bill of 1937, which provided for broad reform of the federal judicial system, allowed President Roosevelt to appoint an additional member to the Supreme Court for every sitting justice over the age of 70, which would have resulted in a total of six new justices at the time the bill was introduced. Despite the fact that the Constitution does not limit the size of the Supreme Court, the legislation immediately came under sharp criticism from legislators, bar associations, and the public.

Fast forward to today, when The Wall Street Journalworries about a court-"packing" plan that consists not of adding judgeships but of filling the ones that already exist. The WSJ editors assert:

It's good to be the king. When the federal courts overturn your Administration's rules or find decisions unconstitutional, you can pack them with judges more likely to rule your way. That seems to be the working theory at the White House, where word is that President Obama is close to nominating several new judges to sit on the D.C. Circuit Court of Appeals.

The D.C. Circuit is arguably the most important appellate court below the Supreme Court. By dint of its location and history, the court often hears challenges to decisions by federal agencies. Among the various federal circuits, the D.C. court has also earned a reputation (relatively speaking) for judicial restraint and careful reasoning that is often adopted by the Supremes. This isn't news, but it has taken on greater political significance because D.C. Circuit judges aren't rolling over for Mr. Obama's regulatory agenda. They are taking seriously legal challenges to illegal rule-making.

What prompted the editorial? The facts that four of the D.C. Circuit's judgeships sit empty and that President Barack Obama may try to fill them.

The one that belonged to Chief Justice John G. Roberts has lacked a judge since his move to the High Nine, on September 25, 2005 (7+ years). The other three respectively have had no occupant since November 1, 2008 (4+ years), October 14, 2011 (2+ years) and February 12, 2013 (3+ months).

But the WSJ urges President Barack Obama to keep hands off. Why? Because, it says, the court now has "six judges on senior status who sit on cases" and therefore "doesn't need new judges to handle the workload." Filling the vacant seats that Congress established thus constitutes "packing the court for political ends."

Let's see. We know that the nominating President's party predicts how judges rule in cases. So how many "active" and "senior" judges got on the court as a result of nominations by Republican and Democratic Presidents, respectively?

The numbers come out thus:

Active Judges

Republican -- 4

Democratic -- 3

Senior Judges

Republican -- 5

Democratic -- 1

Total Judges

Republican -- 9

Democratic -- 4

If Blawgletter has added right, the D.C. Circuit will remain majority Republican appointee even if President Obama nominates four people, and the Senate confirms them, to fill the empty seats.